Chief Salami Olatunde & Anor V. Salami Afolabi Abidogun & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This is a further appeal to this court from the judgment of the court below. The appellants’ appeal to that court having been dismissed by the court below. In suit No. HOG/51/89, the appellants who were the defendants in the trial court were sued by the respondents as plaintiffs for the following reliefs:-

“(i) A declaration that the Jagun Alasa family is the only family entitled under the native law and custom to the lagun Alasa Chieftaincy of Ogbomoso.

(ii) A declaration that the 2nd defendant and/or his family, are not entitled under the native law and custom governing the chieftaincy to the Jagun Alasa chieftaincy title of Ogbomoso.

(iii) A declaration that the appointment of the 2nd defendant by the 1st defendant as the Jagun Alasa of Ogbomoso is invalid, null and void.

(iv) Injunction restraining the 1st defendant from recognising the 2nd defendant as lagun Alasa of Ogbomoso and the 2nd defendant from parading himself as the Jagun Alasa of Ogbomoso.

(v) N2,000.00 general damages.”

Pleadings having been filed and exchanged, the parties called witnesses in support of their respective claims. The respondents, who commenced the action, gave evidence and called four witnesses. The appellants also gave evidence in their own behalf and called one witness who gave evidence in support of their case. However, at the end of the trial, and after hearing addresses by their learned counsel, the learned trial Judge preferred the case of the respondents. The claims of the respondents were therefore upheld save for the claim for the sum of N2,000.00 damages.

Being very dissatisfied with the judgment and orders of the trial court, the appellants appealed to the court below. Their appeal was dismissed by that court, hence they have appealed to this court. Pursuant thereto, they filed a notice of appeal which was amended with the leave of this court. The appellants also when confronted with a preliminary objection with regard to several of the grounds of appeal in the amended notice of appeal, sought and were granted by this court, leave to appeal upon grounds of mixed law and facts. It follows that this appeal proceeded quite properly on seven grounds of appeal including the additional ground of appeal for which leave was also granted by this court.

In accordance with the rules of this court, briefs of argument were filed and exchanged. The appellants in their brief identified seven issues for the determination of the appeal. For this part, learned counsel for the respondents raised four issues for the determination of the appeal. I must however observe that the sets of issues identified for the parties in their respective briefs are not satisfactory as they are not in accordance with the intendment of the rules of this court with regard to the setting down of issues for the determination of an appeal (see Order 6 Rule 5(i)(b) of the Supreme Court Rules (as amended) in 1999). In order to appreciate my observation with regard to the issues set down in the two briefs, they would be reproduced herein:-

The issues in the appellants’ brief read thus:-

“1. Whether the Court of Appeal was right in holding that the origin or root of the Chieftaincy of Jagun Alasa was not seriously in issue at the trial and that the resolution of the issue was essentially immaterial to either of the parties.

2. Whether having regard to the state of pleadings and evidence, the principles in Kojo II v. Bonsie apply to the case.
3. Assuming that the answer to issue No (ii) above is in the affirmative, was the Court of Appeal right in holding that the trial Judge rightly applied the principles in Kojo II v. Bonsie
4. Whether the Court of Appeal was right in holding that the lack of protest by the 2nd appellant’s family on the appointment of Oluside as Jagun Alasa implies that the chieftaincy was never that of the 2nd appellant’s family.
5. Was the Court of Appeal right in holding as mere obiter dictum the holding of the trial Judge, that “the 2nd defendant’s family name is Alugbin family and not Jagun Alugbin family. The appointment of the 2nd defendant was therefore wrongful. .. ”
6. Whether the Court of Appeal was right to have confirmed the judgment of the trial court with the errors and misdirections manifest in the judgment.
7. Have the respondents proved their case as required by law”

It is manifest from the above that seven issues were raised upon seven grounds of appeal filed on behalf of the appellants. This is contrary to the principle already established in the decisions of this court that issues are meant to be formulated, not on each ground of appeal, but raised out of a combination of the essential complaints of the appellants in the ground of appeal. It is my view that three issues or at most four, would have sufficiently covered the complaints of the appellants in this appeal.

With regard to the respondents, it seems to me that their first issue is simply not right. It is indeed a novel way of identifying an issue by asking the court for its attitude in respect of concurrent findings of facts of two lower courts. Perhaps, I may add that issues must relate to the facts decided or the law thereon. It is for the appellants to raise such facts or law in the case on appeal as a poser for the court to answer upon established legal principles.